Pam Frampton: Abbass case shining light in dark corners

If you think Andrew Abbass’s experience is of no concern to the rest of us, think again.

Pam Frampton

Because of his angry social media posts following the police shooting of Donald Dunphy in April 2015, police escorted Abbass to a psychiatric ward where he was held against his will for six days.

Ironically, his story is a triumph of sorts for human rights, because it casts a harsh light on this province’s Mental Health Care and Treatment Act and how it is being exercised improperly in some cases, and without due diligence.

For Abbass, detainment meant a temporary loss of liberty but long-term ramifications for his life: poverty, tarnished reputation, fractured family relationships, an inability to look for work outside the province because of unresolved legal matters.

The Newfoundland and Labrador Court of Appeal recently said of his case, “The reality is that if you are involuntarily confined, you are viewed differently; you are seen as less credible. That is not how it should be but that is how it is.”

Abbass is living that reality.

During his detention, Abbass wanted a habeas corpus hearing — where a judge would listen to legal arguments as to why there were no grounds for his detention; he had harmed neither himself nor anyone else, nor had he been charged with any crime or diagnosed with mental illness. But the judge declined, saying Abbass could appeal to the tribunal set up under the Mental Health Act.

The Court of Appeal says the judge should have heard the case, so Abbass will get his hearing — more than two years later.

But the earliest available date is in late September, and Abbass says he can’t afford to wait that long. This week he wrote to the provincial Department of Justice to say the delay “violates the spirit of habeas corpus, which requires the authority to produce the evidence of the lawfulness of their detainment in a timely fashion.”

The department responded that he might want to consult a lawyer.

Sheila Wildeman, a law professor at Dalhousie University specializing in mental health, says Abbass has done the public a great service in challenging his detainment and going public.

“While Mr. Abbass’s case has wound its way through the courts over a period of years, the decision of the Court of Appeal serves as an important affirmation of the rights of persons in psychiatric detention to access timely and responsive oversight of the legality of their detention,” she said. “It will allow others to bring habeas applications forward where his was disallowed.

“In this decision, the Newfoundland Court of Appeal sends a strong message to psychiatric professionals that their decisions and actions are never immune from legal oversight but rather must be justified according to law.”

And Wildeman posed a larger question worth pondering.

“What do we seek to achieve through involuntary psychiatric detention?” she asked. “And how might we better achieve that? If the purpose is to promote individual well-being along with public safety, are the laws we have, which give police and psychiatrists vast discretionary powers to detain people with a view to forcing medication, the best we can do? Detention might be more defensible (if it ever is) if we put more effort in at the front end to design a social and health-care safety net to support people living in poverty, people facing discrimination, and people struggling with health conditions brought on or worsened by poverty and discrimination.”

Wildeman also noted that, “the rationales given for detaining patients on psych wards, including the decisions of mental health tribunals, are (in most provinces), not open to public scrutiny.”

It may be cold comfort to Abbass to be a human rights hero, but his case is challenging a status quo that lacks transparency and oversight and makes it too easy for people to be involuntarily detained without speedy recourse.

He deserved his day in court two years ago. Making him wait several months more seems like further punishment.